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IN THE HIGH COURT OF JUDICATURE AT PATNA
MADHURESH PRASAD, J.
Dharambir Prasad Singh, Son of Late Naresh Chandra Singh - Petitioner
Versus
The State of Bihar through the Chief Secretary, Government of Bihar, Patna and Ors - Respondent
Civil Writ Jurisdiction Case No.10857 of 2020
Decided On : 26-03-2021
Bihar Municipal Act, 2007 – Sections 323 and 324 – Constitution of India – Article 226 – Direction to stop building construction work till adjudication of title by a Civil Court of competent jurisdiction – Jurisdiction under Section 323 can be exercised only if construction in question has commenced, is being carried on, or has been completed contrary to sanction accorded for construction or in contravention of Act and/or Rules and Regulations made thereunder – There is no such finding by City Executive Officer, Nagar Parishad, in Miscellaneous Case filed by Respondent No.10 against construction project of Petitioner – Sanctioned plan/map is in favour of petitioner and there is no declaration by a competent Civil Court regarding his claim being based on fabricated or fraudulent documents – There is no basis for this Court to conclude that petitioner's claim is based on fraud or fabricated documents and refuse to exercise jurisdiction under Article 226 of Constitution in favour of petitioner on equitable considerations – This Court, in these proceedings under Article 226 of Constitution, would refrain from entering into claim based on disputed facts and documents, touching upon issue of title – There is no adjudication by any competent Civil Court as to whose claim to lands in question is based on equity, or whose claim is based on falsehood or fraud or forgery – Fact that petitioner has assailed order before Tribunal is a clear manifestation of disagreement with impugned order passed by City Executive Officer, Nagar Parishad – In entire impugned order there is not even a whisper regarding any allegation or finding that construction being carried on by petitioner has commenced, is being carried on or has bean completed without, or contrary to sanction – In absence of any such finding which is a sine qua non for exercise of power under Section 323 of Act, City Executive Officer, Nagar Parishad could not have assumed jurisdiction to pass any order stopping construction work – Impugned order quashed. (Paras 21, 23, 26, 29, 30 and 31)
Constitution of India – Article 226 – Alternative remedy – Merely because there exists an alternative remedy, Writ Court is not precluded from exercise of jurisdiction – Refusal to exercise discretionary jurisdiction under Article 226 when alternative remedy exists, is a rule of discretion and not an absolute bar. (Para 28)
JUDGMENT :
1. The petitioner seeks quashing of the order dated 04.09.2020, bearing Memo No.1674, passed in Miscellaneous Case No.04 of 2019 (Building Construction) by the City Executive Officer, Nagar Parishad, Danapur Nijamat, Patna (Respondent No.6), disposing of the case filed by Sanjay Kumar (Respondent No.10). By the said order, the Executive Officer has issued a direction to stop the petitioner’s building construction work till adjudication of title by a Civil Court of competent jurisdiction.
2. The brief facts of this case is that the petitioner claims to be maternal grandson of one Ramcharitra Singh, who held 9.73 acres of land by virtue of a family partition through a registered partition deed executed in the year 1969. 2.53 acres of land was gifted by Ramcharitra Singh to his wife through a registered gift deed in the year 1975. He also gifted 28 decimals of land to his one and only daughter Shakuntala Devi by a registered deed of gift in 1975 itself. In 1984, said Ramcharitra Singh gifted 1.63 acre of land to his only daughter Shakuntala Devi, the petitioner and his brother, namely, Gopal Prasad Singh, both sons of Shakuntala Devi, through a registered gift deed. The same includes land of Plot No.1077, which is the subject-matter for the present, besides other plots.
3. It is the petitioner’s case that subsequently their mother Shakuntala Devi gave her 1/3rd share in the aforesaid gifted land in favour of the petitioner and his brother Gopal Prasad Singh, whereafter they became absolute owner of the properties.
Later, by a family arrangement, inherited property was divided between the petitioner and his brother, whereafter they continue to hold and possess the land with absolute right, title, interest and peaceful possession. The lands have duly been mutated and rent is also being paid to the State of the Bihar. In support of such contention, rent/revenue receipts have been placed on record by way of Annexure 1 to the writ petition.
4. The petitioner entered into a Development Agreement for construction of multi storeyed building with Respondent Nos.8 and 9 on 03.03.2011 with regard to part of the land appertaining to Khata No.885, Survey Plot No.l077 having a total area of 79½ decimals situated in Revenue Thana No.21. In furtherance of the Development Agreement, the petitioner submitted an application for approval/sanction of the map/plan. The Office of the Respondent No.6-the City Executive Officer, Nagar Parishad, Danapur Nijamat, Patna sanctioned the building map/plan, vide Building Plan No.82/16-17 on 15.06.2016. Construction thereafter has been undertaken in compliance with all other legal and statutory obligations.
5. Respondent No.10 has sent a legal notice dated 30.03.2019 claiming to be the purchaser of the lands in question from the petitioner’s maternal grandfather, namely, Ramcharitra Singh, by two sale deeds dated 11.12.1971 and 13.12.2071, allegedly registered in Kolkata Registry Office in the State of West Bengal. By reply dated 04.04.2019 through his Advocate, the petitioner denied the claim and assertions of the Respondent No.10. Respondent No.10 has thereafter approached the Real Estate Regulatory Authority, (RERA),Bihar, vide Complaint Case No.376 of 2019 under Section 7 of the Real Estate (Regulation and Development) Act, 2016 for revoking registration of petitioner’s project. He also filed Miscellaneous Case No.04 of 2019 before the Nagar Parishad, Danapur Nijamat under Section 323 of the Bihar Municipal Act, 2007 (hereinafter referred to as “the Act”).
6. In the said proceedings, the instant petitioner appeared and has denied and disputed the claims set forth by Respondent No.10. His stand is that the claim of Respondent No.10 is based on falsehood and fraud and that the Respondent No.10 has no locus in the matter. The construction work had started on the basis of a sanction plan/map way back on
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